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Judgment
S.D. Agarwala, J.—This is an application u/s 482 Code of Criminal Procedure. The applicant was an employee of the State Agriculture Department in the State of Uttar Pradesh in the year 1968-69 and was posted as the Assistant Agriculture Inspector at Kerakat Seed Store in district Jaunpur.
On 20th June, 1972, a First Information Report was lodged against the applicant in respect of misappropriation of a sum of Rs. 1,49,449.50 P. The case against the applicant was u/s 409, IPC. After the First Information Report was registered, the case was transferred to the CID (Agriculture) for investigation in August, 1973. The CID (Agriculture) completed the investigation in the year 1975 and it was reported that a sum of over Rs. 1,00,000/- was embezzled by the applicant. The CID (Agriculture) further submitted many documents in support of their report. Ultimately, on 8th September, 1976, a charge sheet was submitted before the Judicial Magistrate, Jaunpur. This was registered by the Judicial Magistrate. The Judicial Magistrate summoned the applicant for 30th May, 1977, by an order dated 21st February, 1977. It appears, thereafter, that no body appeared on behalf of the prosecution for a number of dates and, ultimately, on 15th February, 1980, the Judicial Magistrate passed the following order:
Accused present.
None responds for prosecution. The case is pending since 1977. Even charge could not be framed against the accused. Inspite of issuing N. B. warrant and process Under Sections 82/83, Code of Criminal Procedure, none truned up for prosecution.. There is no other alternative, but to consign the file. Let the file be consigned with the direction that whenever the prosecution desire, the case can be restored.
On 17th May, 1980, the prosecution filed an application with the request that the case be reopened and the accused be summoned for trial. On 27th November, 1980, the application for restoration came up before the Magistrate for orders and he passed the following order:
Case called out. Accused present. None responds for prosecution, CID, Agriculture Cell. Hence the application dated 17-5-1980 for restoration of the case is dismissed. Accordingly, the file be consigned.
After this order was passed, another application was made on 22nd January, 1981, on behalf of the prosecution seeking to reopen the case. The Judicial Magistrate passed the following order on the said application:
Heard
Summon the file. Fix 28-2-1981 for presence.
On 28th February, 1981, fixed by the Court, the applicant appeared and filed objections to the further prosecution on the ground that the Judicial Magistrate did not have the jurisdiction to restore the case. Since the Judicial Magistrate proceeded with the case and did not decide the objections, the applicant came to this Court and filed the present application. This Court, during the pendency of the case, stayed further proceedings in the court below by an order dated 7th July, 1981.
I have heard Sri V. Singh, learned Counsel for the applicant, and Sri Surendra Singh, brief holder on behalf of the State of U.P., who have very ably argued this case.
Learned Counsel for the applicant has raised many contentions in support of his case. His first contention is that after the charge sheet was submitted by the prosecution, the Judicial Magistrate could either pass an order of discharge u/s 239, Code of Criminal Procedure or issue a charge to the applicant u/s 240, Code of Criminal Procedure and there was no other course available to the Judicial Magistrate. It is, consequently, urged that the Judicial Magistrate could not consign the record, as has been done by him by order dated 15th February, 1980.
The second submission of the learned Counsel is that even if no specific order has been passed for discharging the applicant then too in the eye of law, the order dated 15th February, 1980 should be treated as an order of discharge u/s 239, Code of Criminal Procedure.
The third submission of the learned Counsel is that the first restoration application having been rejected on 27th November, 1980, the Judicial Magistrate had no jurisdiction at all to pass fresh order on the second restoration application recalling the earlier order dated 27th November 1980.
The fourth submission of the learned Counsel is that the First Information Report having been lodged as far back as on 20th June, 1972, the case was kept pending by the prosecution till the year 1981, when the applicant was compelled to come to this Court. There was a delay of nine years. This was an undue delay caused because of the prosecution and, as such, it amounted to gross abuse of the process of the Court and, as such, this is a fit case where this Court should exercise its discretion u/s 482, Code of Criminal Procedure to quash the proceedings against the applicant.
The fifth submission of the learned Counsel is that the application moved on 22nd June, 1981, contained no reasons for the non-appearance of the learned Counsel, who appeared on behalf of the prosecution and, as such, the application could not have been allowed. In this connection, it has been further alleged that even the Court did not record any reason as to why the earlier order was being recalled.
The last submission made by the learned Counsel is that unless the order dated 27th November, 1980, had been recalled by a subsequent order of the Judicial Magistrate on 22nd January, 1981, no further proceedings can continue.
So far as the first and the second contentions of the learned Counsel are concerned, the same will depend upon the interpretation of the order dated 15th February, 1980. The relevant portion of the order dated 15th February, 1980, which requires an interpretation by this Court, is to the following effect:
None turned up for prosecution. There is no other alternative, but to consign the file. Let the file be consigned with the direction that whenever the prosecution desires, the case can be restored.
From a reading of the order, it is apparent that the Judicial Magistrate did not apply his mind at all on the merits of the case. The file had been consigned to the record room with the direction that whenever the prosecution desires, the case can be restored. The last few words of the order clearly indicate that what the Judicial Magistrate intended was that as and when an application is made on behalf of the prosecution for restoration of the case, the said case shall be restored. It cannot be culled out from the order that the intention of the Judicial Magistrate was to close the file for ever.
Section 239, Code of Criminal Procedure provides that if, upon considering the police report and the documents sent with it u/s 173, Code of Criminal Procedure and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. This provision clearly contemplates that the Magistrate has to apply his mind to the merits of the case, the evidence on the record and if necessary, give an opportunity of being heard, both to the accused and the prosecution, and, thereafter pass a final order on the police report submitted before it. The application of mind of the Magistrate has to be on the merits of the case. The Parliament has further provided a safe-guard that the Magistrate shall record his reasons for so doing. The safe-guard has been provided so that the order of the Magistrate discharging an accused is not arbitrary and fanciful. The discharge has to be on the reasons valid in law after considering the evidence on the record. Because of this provision, it is clear that the order dated 15th February, 1980 was not passed by the Magistrate u/s 239 Code of Criminal Procedure.
The question now arises which has to be considered as to whether by using the word ''consigned'', the Magistrate intended that the accused should be discharged and all further proceedings against the accused be dropped.
The word ''consign'' has not been defined in the Criminal Procedure Code. It is therefore, necessary to find out the general sense in which this word is used in common parlance.
In Webster''s Third New International Dictionary, Volume I, the word ''consign'' has been defined. One of the meanings given to the word ''consign'' is as under:
to come over to another''s charge, custody or care.
Taking into consideration the above meaning of the word ''consign'', it is clear that what the Magistrate intended to do was to give the file in the custody of the office for keeping it carefully so that in case required, the Magistrate can recall the same for further prosecution. In the context in which the word ''consign'' has been used in the present case, in my opinion, the contention of the learned Counsel for the applicant cannot be upheld that the intention of the learned Magistrate was to discharge the accused and file the police report. The intention clearly was to keep the case in abeyance so that the accused is not harassed by appearing again and again in the case unless the prosecution itself makes an application for restoring the case for further action.
In this connection, the further argument, as I have already indicated above, has been raised by the learned Counsel for the applicant that only two courses are open to the Judicial Magistrate, either to discharge the accused or to frame a charge against the applicant u/s 240, Code of Criminal Procedure. So far as the prosecution of law is concerned, in my opinion, there can possibly be no dispute. Once a police report is lodged, either the accused has to be discharged or a charge has to be framed against him, but, none of the sections of the Code of Criminal Procedure prohibits a Magistrate to keep the police report in abeyance till further orders are passed on that police report. In the instant case, as I have already found above, what the learned Magistrate intended by order dated 15th February, 1980, was to keep the police report in abeyance along with the charge sheet etc., but he had no intention to finally discharge the accused. Learned Counsel for the applicant, in this connection, has relied upon an unreported decision of this Hon''ble Court in Khalilul Rehman v. State, Cr. Rev. No. 418 of 1962decided on 19th November, 1962, by Hon''ble D.S. Mathur, J. (as he then was). In the case relied upon by the learned Counsel for the applicant, after framing of the charge sheet, no witnesses turned up on various dates for hearing. Eventually, the Magistrate had passed an order u/s 249 of the old Code of Criminal Procedure without recording either the order of conviction or acquittal and consigned the papers to the record room and further passed a specific order releasing the accused. Learned Counsel has relied upon the fact that in this case, the papers had also been consigned to the record room and it was held by this Court that it would amount to acquittal of the accused. In my opinion, this case is clearly distinguishable on facts. In this case, the Magistrate, in fact, not only consigned the record to the record room, but further directed that the accused be released. Specific order for release of the accused clearly meant that the Magistrate, after applying his mind, was of the opinion that the accused be acquitted. In the circumstances, the principle laid down in the case of Khalilul Rehman v. State (Supra), in my opinion, does not apply in the instant case.
The third submission, made by the learned Counsel is that no second restoration application would lie. Reliance, in this connection, has been placed on Section 362, Code of Criminal Procedure, which provides as under:
Court not to alter judgment:
Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
Learned Counsel has further relied upon, in this connection, a decision of the Hon''ble Supreme Court in Bindeshwari Prasad Singh Vs. Kali Singh, .
Section 362, Code of Criminal Procedure, which I have already quoted above, provides that no Court shall alter or review a judgment or a final order disposing of a case. Learned Counsel appearing for the State has made specific emphasis on the words "judgment or final order disposing of a case ". In my opinion, the words "judgment or final order disposing of a case" are significant. The Parliament while enacting Section 362, Code of Criminal Procedure used these words only to give finality to those judgments or orders passed by the Court which finally disposed of the controversy involved in a criminal case. If a particular order does not finally dispose of a criminal case, it could not possibly be held to be a judgment or a final order. In the instant case, by order dated 27th November, 1980, the Magistrate only dismissed the restoration application, as no body appeared on behalf of the prosecution. It cannot be called a judgment or final order disposing of the case. In the circumstances, the principles of Section 362, Code of Criminal Procedure would not be applicable in the instant case. If an application for restoration is dismissed in default, in my opinion, it is always open to a party to move another application for restoration, as I do not find any such prohibition in the Criminal Procedure Code.
The case of Bindeshwari Prasad Singh v. Kali Singh (Supra) decided by the Supreme Court was also a case of a final order and not an interlocutory order dismissing an application for restoration. In the circumstances, in my opinion, the principles laid down in the case of Bindeshwari Prasad Singh v. Kali Singh (Supra) by the Hon''ble Supreme Court cannot apply in the instant case.
In so far as the fourth submission of the learned Counsel is concerned, in the counter affidavit, it has been stated that the CID Agriculture Cell, had been investigating in this case. Since the misappropriation alleged against the applicant was of a huge amount of more than rupees one lac, the prosecution took a couple of years to collect the relevant materials in respect of the charge. In 1976, the charge sheet was submitted to the Court. Thereafter, no doubt, there was some lapse on the part of the prosecution in prosecuting the case, but it cannot be said that it was such a lapse that it was intended to either prejudice the applicant or it was with a view to abuse the process of the Court. In view of the facts of the instant case, it cannot be said that the prosecution against the applicant is a gross abuse of the process of the Court.
Learned Counsel for the applicant has relied upon a number of decisions in support of his proposition that in cases where there is a gross abuse of the process of the Court, it will be open to the Court to quash the proceedings u/s 482, Code of Criminal Procedure. So far as the legal proposition is concerned, it is not disputed, but, on the facts and circumstances of the present case, I am of the opinion, particularly when such a huge amount of money is involved in the case which has been alleged to have been misappropriated by the applicant that it is a case where the proceedings be quashed at this stage.
The fifth argument raised by the learned Counsel for the applicant is that in the application dated 22nd January, 1981, no reasons have been given by the learned Counsel for the prosecution for seeking restoration. This question was not specifically raised in the application filed in this Court otherwise in the counter affidavit, the version of the State have come as to what was the reason as to why the counsel for the prosecution could not appear. In the circumstances, it cannot be said that merely because the application did not contain reasons, the Court could not restore the case. It is quite possible, as usually happens in Court, that the counsel might have orally given reasons to the Court for his non-appearance in the case. It was open to the Court to be satisfied with the cause for non-appearance. It is not necessary that very detailed reasons be given in every case, before allowing a restoration application, particularly in a case where the Magistrate himself intended by order dated 15th February, 1980, that if an application for restoration is made, the record, which had been consigned, shall be taken out for further action.
In regard to the last submission, it is true that there is no order passed on 22nd January, 1981, for recalling the order dated 22nd November, 1980. The order dated 22nd January, 1981, impliedly recalled the order dated 22nd November, 1980. The mere absence of the words recalling the order dated 22nd November, 1980, are not so material as to vitiate the proceedings. The fact, that the application for restoration was allowed itself impliedly means that the earlier order had been set aside and recalled by the Magistrate.
In view of the above, I am of the opinion that no interference is called for u/s 482 Code of Criminal Procedure. The application is, accordingly, rejected. The interim order dated 7th July, 1981, is hereby vacated.